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Native Title Amendment Bill 2009

Schedule 5 Amendments relating to representative bodies

Part 1 Removal of transitional arrangements

Native Title Act 1993

1  Section 201A (definition of transitional commencing day )

Repeal the definition.

2  Section 201A (definition of transitionally affected area )

Repeal the definition.

3  Section 201A (definition of transition period )

Repeal the definition.

4  Section 201C

Repeal the section.

5  Subsection 203A(1)

Omit “Subject to section 203AA, the”, substitute “The”.

6  Section 203AA

Repeal the section.

7  Subsection 203AB(1)

Omit “Subject to subsection (3), an”, substitute “An”.

8  Subsection 203AB(3)

Repeal the subsection.

9  Subsection 203AC(1A)

Repeal the subsection, substitute:

          (1A)  The Commonwealth Minister must determine applications under section 203AB as soon as practicable after whichever of the following periods ends last:

                     (a)  the period specified under subsection 203A(3);

                     (b)  if a further period applies under subsection 203AB(2) in relation to one or more of those applications—the last such further period;

                     (c)  if the Commonwealth Minister has, in relation to one or more of those applications, given to a body a notice under subsection (1) of this section requiring the body to give further information within a specified period—the last such period.

10  Subsection 203AD(1)

Omit “Subject to subsection (1A), the”, substitute “The”.

11  Subsections 203AD(1A), (1B), (2), (2A), (2B) and (2C)

Repeal the subsections, substitute:

Period of recognition

             (2)  The recognition of the body as a representative body:

                     (a)  takes effect on the day specified in the instrument of recognition; and

                     (b)  ceases to have effect at the end of the day specified in that instrument unless the body’s recognition is earlier withdrawn under section 203AH.

12  Saving provision—recognition under subsection 203AD(1A) of the Native Title Act 1993

(1)       This item applies if:

                     (a)  an eligible body was recognised under subsection 203AD(1A) of the Native Title Act 1993 before the commencement of this item; and

                     (b)  the recognition is in effect immediately before that commencement.

(2)       Despite the amendments made by this Part, the recognition continues to have effect after the commencement of this item as if those amendments had not been made.



 

Part 2 Recognition of representative bodies

Native Title Act 1993

13  Paragraph 201B(1)(b)

Omit “at the commencement of this section”.

14  Subsection 203A(1)

After “Minister may”, insert “, in writing”.

15  Paragraph 203A(1)(a)

Omit “, in the way determined in writing by the Commonwealth Minister,”.

16  Paragraph 203A(1)(b)

Omit “, in writing,”.

17  After subsection 203A(1)

Insert:

Invitations may specify an area for which there is a representative body

          (1A)  The invitation may specify an area for which there is a representative body.

Note:          An eligible body must not be recognised as the representative body for an area with effect from a particular day if the recognition of a body as the representative body for all or part of the area will be in effect on that day: see subsection 203AD(4).

18  Subsections 203A(3A), (3B) and (4)

Repeal the subsections, substitute:

Invitations to specify information that must be included in applications

             (4)  The invitation must specify the information that must be included in the application or applications that are given to the Commonwealth Minister.

Invitations to contain statement about revocation of invitations

             (5)  The invitation must contain a statement setting out the effect of section 203AA (which deals with the revocation of invitations).

Invitations to contain statement about notification requirement

             (6)  If the invitation is made under paragraph (1)(b), the invitation must contain a statement setting out the effect of section 203AAA (which requires an eligible body to notify the Commonwealth Minister if it decides not to apply for recognition etc.).

 Invitations may be general

             (7) For the purposes of paragraph (1)(a), the Commonwealth Minister may arrange for the publication of general invitations and need not make a separate invitation to each eligible body.

19  After section 203A

Insert:

203AA   Revocation of invitations

             (1)  The Commonwealth Minister may, in writing, revoke an invitation made under subsection 203A(1) if:

                     (a)  the Commonwealth Minister considers it appropriate to do so; and

                     (b)  the period that applies under subsection 203AB(2) has not expired.

             (2)  If:

                     (a)  an eligible body, to whom the invitation was made, has made an application under section 203AB; and

                     (b)  at the time of revocation, the application has not been determined;

then the application is taken never to have been made.

             (3)  If the invitation was made under paragraph 203A(1)(a), the Commonwealth Minister may arrange for the publication of the revocation and need not give a separate document to each eligible body to whom the invitation was made.

203AAA   Eligible body must notify the Commonwealth Minister if it decides not to apply for recognition etc.

Scope

             (1)  This section applies if an eligible body is invited under paragraph 203A(1)(b) to apply for recognition.

Notification of decision not to apply for recognition

             (2)  If the eligible body decides not to apply for recognition, the eligible body must, in writing, notify the Commonwealth Minister of that decision before the end of the period specified in the invitation under subsection 203A(3).

Deemed notification

             (3)  If the eligible body does not:

                     (a)  give a notification under subsection (2); or

                     (b)  make an application before the end of the period that applies under subsection 203AB(2);

the eligible body is taken to have given a notification under subsection (2) of this section at the end of that period.

20  Subsection 203AB(1)

Omit “, in the form approved by the Commonwealth Minister,”.

21  Subsection 203AD(1)

After “an area”, insert “or areas”.

22  Subsection 203AD(1)

After “the area”, insert “or areas”.

23  Paragraph 203AD(2)(b)

Before “ceases”, insert “subject to subsection (3),”.

24  Subsections 203AD(2D) and (2E)

Repeal the subsections, substitute:

             (3)  If an area for which a body is recognised as the representative body is varied under subsection 203AE(1) so as to reduce the area to zero, the recognition of the body ceases immediately after the variation takes effect.

          (3A)  The period of recognition specified in the instrument of recognition must be at least 1 year but not more than 6 years.

          (3B)  In deciding the period of recognition to specify in the instrument of recognition, the Commonwealth Minister must consider the following:

                     (a)  whether the body is under external administration;

                     (b)  whether a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body;

                     (c)  what period of recognition would, in the opinion of the Commonwealth Minister, promote the efficient performance of the functions mentioned in subsection 203B(1).

          (3C)  In deciding the period of recognition to specify in the instrument of recognition, the Commonwealth Minister may consider any information in the possession of the Minister or the Department that is relevant to that decision.

          (3D)  Subsections (3B) and (3C) do not limit any other matters that the Minister may take into account in deciding the period of recognition.

25  Subsection 203AD(5)

After “an area”, insert “or areas”.

26  Sections 203AE, 203AF and 203AG

Repeal the sections, substitute:

203AE   Commonwealth Minister may vary an area for which a body is the representative body

             (1)  Subject to this section, the Commonwealth Minister may, by legislative instrument, vary an area for which a body is the representative body if the Commonwealth Minister is satisfied that, after the variation, the body will satisfactorily perform its functions in relation to the varied area.

Variation to add the whole or a part of another area

             (2)  The Commonwealth Minister must not vary an area (the original area ) under subsection (1) to add the whole or a part of another area (the additional area ) unless the boundary of the original area adjoins the boundary of the additional area.

Reduction of area

             (3)  Without limiting subsection (1), the Commonwealth Minister may vary an area under that subsection so as to reduce the area, including reduce the area to zero.

             (4)  In deciding whether to vary an area so as to reduce it to zero, the Commonwealth Minister need not be satisfied of the matter mentioned in subsection (1).

Variation on application or on the Commonwealth Minister’s own initiative

             (5)  The Commonwealth Minister may vary an area under subsection (1) for which a body is the representative body:

                     (a)  on application, in writing, by the body; or

                     (b)  subject to section 203AF, on the Commonwealth Minister’s own initiative.

             (6)  If an application is made under paragraph (5)(a) in relation to an area, the Commonwealth Minister may vary the area as the Commonwealth Minister considers appropriate.

Consideration of reports etc.

             (7)  In deciding whether to vary the area, the Commonwealth Minister may consider the following:

                     (a)  any reports under section 203DF of audits or investigations of the body;

                     (b)  any reports under section 193X of the Aboriginal and Torres Strait Islander Act 2005 in relation to funding provided to the body under section 203C or 203FE of this Act;

                     (c)  any notices that the Secretary of the Department has given to the Commonwealth Minister under section 203F in relation to the body;

                     (d)  any information in the possession of the Minister or Department that is relevant to the variation.

             (8)  Subsection (7) does not limit any other matters that the Commonwealth Minister may take into account in deciding whether to vary the area.

Consideration of submissions

             (9)  In deciding whether to vary the area, the Commonwealth Minister must consider any submissions made by a body or person within the period mentioned in subsection 203AF(6).

When the variation takes effect

           (10)  The variation of the area takes effect on:

                     (a)  the day on which the instrument varying the area is made; or

                     (b)  if a later day is specified in that instrument—that day.

203AF   Notification requirements for the variation of an area on the Commonwealth Minister’s own initiative

Notification requirements

             (1)  Subject to subsection (7), the Commonwealth Minister must not vary an area under subsection 203AE(1) on his or her own initiative unless the Minister complies with subsection (2) of this section.

             (2)  The Commonwealth Minister must:

                     (a)  notify, in writing, each of the following that the variation of the area (the initial area ) is being considered:

                              (i)  the body that is the representative body for the initial area;

                             (ii)  if there is a representative body for another area (the other area ) that has a boundary that the Commonwealth Minister proposes to vary as result of varying the initial area—that body;

                            (iii)  the Aboriginal peoples or Torres Strait Islanders who live in the initial area and, if subparagraph (ii) applies, who live in the other area; and

                     (b)  arrange for the publication in a newspaper (if any) circulating generally in the initial area of a notice that states that the variation is being considered; and

                     (c)  if the newspaper mentioned in paragraph (b) does not also circulate generally in the other area—arrange for the publication of the notice mentioned in paragraph (b) in a newspaper (if any) circulating generally in the other area.

             (3)  For the purposes of subparagraph (2)(a)(iii), the Commonwealth Minister may arrange for the publication of a general notification and need not give a separate notification to the persons mentioned in that subparagraph.

Content of notice

             (4)  The notice to a body mentioned in subparagraph (2)(a)(i) or (ii) must:

                     (a)  identify the proposed variation; and

                     (b)  state the reasons why the Minister is considering varying the initial area; and

                     (c)  state that the body may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the initial area should be varied.

             (5)  The notice to a person mentioned in subparagraph (2)(a)(iii) must state that the person may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the initial area should be varied.

             (6)  The period specified in the notice under paragraph (4)(c) or subsection (5) must not begin before the day on which the notice is given to the body or person concerned and must be a period of at least 60 days.

Exception to notification requirements

             (7)  The Commonwealth Minister need not comply with subsection (2) in relation to the variation of the other area if:

                     (a)  the variation is to be made as a result of the variation of the initial area; and

                     (b)  notification under that subsection of the variation of the initial area has been previously given to the representative body for the other area.

203AG   Notice of decision on variation

             (1)  As soon as practicable after deciding whether to vary an area under subsection 203AE(1), the Commonwealth Minister must:

                     (a)  notify, in writing, each of the following of the decision and the reasons for the decision:

                              (i)  the body that is the representative body for the area;

                             (ii)  the Aboriginal peoples or Torres Strait Islanders who live in the area to which the decision relates; and

                     (b)  arrange for the publication in a newspaper (if any) circulating generally in the area of a notice setting out the decision and the reasons for the decision.

             (2)  For the purposes of subparagraph (1)(a)(ii), the Commonwealth Minister may arrange for the publication of a general notification and need not give a separate notification to the persons mentioned in that subparagraph.

27  Subsection 203AH(1)

Omit all the words after paragraph (b).

28  After subsection 203AH(1)

Insert:

          (1A)  A request under paragraph (1)(b) must be accompanied by a signed statement that the request has been authorised by the members of the body in accordance with the body’s processes.

29  Subsection 203AH(3)

Omit “At least 60 days before deciding to withdraw the recognition under subsection (2), the Commonwealth Minister must notify”, substitute “The Commonwealth Minister must not decide to withdraw the recognition under subsection (2) unless the Minister notifies”.

30  Paragraph 203AH(3)(b)

Omit “invite the body to”, substitute “state that the body may”.

31  Subsection 203AH(3)

Omit “at least 60 days”, substitute “at least 30 days”.

32  After subsection 203AH(3)

Insert:

          (3A)  The Commonwealth Minister may, in writing, extend the period specified in the notice under subsection (3) if:

                     (a)  the body applies, in writing, for an extension; and

                     (b)  the application is made before that period ends.

33  At the end of subsection 203AH(4)

Add:

                   ; (d)  any information in the possession of the Minister or Department that is relevant to the matter mentioned in paragraph (2)(a) or (b) of this section.

34  Subsection 203AH(6)

Omit all the words after “made by”, substitute:

                   the body:

                     (a)  within the period specified in the notice under subsection (3); or

                     (b)  if that period has been extended under subsection (3A)—within the extended period.

35  Subsection 203AI(1)

Omit all the words after “Minister’s opinion,”, substitute “the body will comply with, or is complying with, section 203BA (which deals with how functions of representative bodies are to be performed).”

Note:       The heading to subsection 203AI(1) is deleted.

36  Subsection 203AI(2)

Repeal the subsection.

Note:       The heading to subsection 203AI(3) is deleted.

37  Paragraph 203BA(2)(c)

Repeal the paragraph, substitute:

                     (c)  ensures that the structures and processes operate in a fair manner, having particular regard to:

                              (i)  the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and

                             (ii)  the extent to which its processes involve consultation with those Aboriginal peoples or Torres Strait Islanders; and

                            (iii)  its procedures for making decisions and for reviewing its decisions; and

                            (iv)  its rules or requirements relating to the conduct of its executive officers; and

                             (v)  the nature of its management structures and management processes; and

                            (vi)  its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area.

38  Subsection 203FC(5) (definition of former area )

After “the area”, insert “, or the part of an area,”.

39  Application—sections 203AE, 203AF and 203AG of the Native Title Act

(1)       Despite the repeal of section 203AE of the Native Title Act 1993 by this Part, that section (as in force immediately before the commencement of this item) continues to apply, in relation to the following, as if the repeal had not happened:

                     (a)  an application made under that section but not determined before that commencement;

                     (b)  a notice of a proposed extension given under that section if a decision has not been made about the proposed extension before that commencement.

(2)       Despite the repeal of section 203AF of that Act by this Part, that section (as in force immediately before the commencement of this item) continues to apply, in relation to the following, as if the repeal had not happened:

                     (a)  an application made under that section but not determined before that commencement;

                     (b)  a notice of a proposed variation given under that section if a decision has not been made about the proposed variation before that commencement.

(3)       Despite the repeal of section 203AG of that Act by this Part, that section (as in force immediately before the commencement of this item) continues to apply, in relation to a notice of a proposed reduction given under that section if a decision has not been made about the proposed reduction before that commencement, as if the repeal had not happened.